IN INCOME TAX APPELLATE TRIBUNAL, BENCH H ,MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No. 4954/Mum/2014 (Assessment Year : 2006-07) Masalawala A.T.C Al- ITO 20(2)(2), th Javarat, 10 Road, J.V.P.D. Piramal Chambers, Parel, Scheme, Juhu, Mumbai-400059. Vs. Mumbai-400012. PAN: AAAFM0491R (Appellant) (Respondent) Assessee by : Shri Sharad Vaidya (AR) Revenue by : Shri Kusum Bansal (DR) Date of hearing : 06.10.2016 Date of Pronouncement : 07.10.2016 ORDER PER PAWAN SINGH, JM: 1. This appeal u/s 253 of Income-tax Act is directed by assessee against order of CIT(A)-31, Mumbai dated 28.05.2014 for Assessment Year (AY) 2006-07. Wherein ld. CIT(A) confirmed penalty levied u/s 271(1)(c) of Act. 2. Brief facts of case are that assessee filed return of income for relevant AY declaring total income as Nil. assessment was completed u/s 143(3) on 19.12.2008 determining income of Rs. 1,16,810/-. In quantum assessment, excessive WDV of furniture & fixture amounting to Rs. 2,13,490/- was disallowed. Consequently Short Term Capital Gain (STCG) of Rs. 1,16,812/- was brought to tax. Assessee filed appeal before CIT(A) but same was dismissed consequent upon second appeal was 2 ITA No. 4954/M/2014- Masalawala A.T.C filed before this Tribunal and same was also dismissed on 24.01.2012. After dismissal of appeal, AO issued notice for initiation of penalty and levied penalty of Rs. 64,050/- @ 100% of tax sought to be evaded vide order dated 29.03.2012. Aggrieved by order of penalty, assessee filed appeal before CIT(A) but same was dismissed, thus present appeal is filed before us. 3. We have heard ld. Authorized Representative (AR) of assessee and ld. Departmental Representative (DR) for Revenue and perused material available on record. ld AR for assessee would argue that assessee has disclose all particulars of income in return, there was no concealment of income. Mere disallowance of claim of WDV of claim of furniture and fixture would not lead to furnishing of inaccurate particulars of income. On other hand ld DR for revenue supported order of authorities below and would argue that appeal of assessee on quantum assessment was dismissed by this Tribunal. 4. We have considered rival contention of parties. of for Only short question for re-determination in present appeal is whether mere excessive disallowance of WDV of furniture & fixture amounting to Rs. 2,13,490/- attract penalty or not. It is settled position of law that mere disallowance in quantum assessment would not lead to making conclusion that there was concealment or furnishing of inaccurate particular of income. Further, we have noticed that assessee in reply to notice of penalty proceeding has categorically explained that depreciation claimed of furniture & fixture was disallowed to some extent and there was no deliberate concealment and assessee was not liable for penalty. Thus, assessee has sufficiently explained as per Explanation-1 attached to section 271(1)(c) of Act. Keeping in view peculiarity of fact of case, we find that penalty levied by AO and confirmed by 3 ITA No. 4954/M/2014- Masalawala A.T.C CIT(A) is not sustainable in eyes of law, hence, entire penalty is deleted. 5. In result, appeal of assessee is allowed. Order pronounced in open court on this 7th October, 2016. Sd/- Sd/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated 07/10/2016 S.K.PS Copy of Order forwarded to : 1. Appellant 2. Respondent. 3. CIT(A), Mumbai. BY ORDER, 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. (Asstt.Registrar) //True Copy/ ITAT, Mumbai Masalawala A.T.C Al-Javara v. ITO 20(2)(2), Mumbai